(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
20 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENCES RELATING TO PARTICIPATION IN CRIMINAL ORGANISATIONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY
The respondent pleaded guilty to one count of aggravated trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of possessing a prohibited weapon contrary to s 21F of the Summary Offences Act 1953 (SA).
On 11 December 2020, police attended and searched the respondent’s cabin at the Bolivar caravan park after receiving information that he was trafficking methylamphetamine. They located and seized three resealable bags containing methylamphetamine in various quantities (totalling over 95 grams), and other indicia of drug trafficking including glass pipes, tick lists, electronic scales, a heat-sealing machine, mobile phones and cash. Police also located a black taser under the pillow of the respondent’s bed. One of the seized mobile phones contained text messages between the respondent and the president of the Nomads Motorcycle Club in relation the respondent’s membership and involvement in the Nomads, including as a trafficker on their behalf. The respondent's trafficking in a controlled drug was aggravated by reason that it was committed for the benefit of a criminal organisation.
The sentencing judge commenced with a starting point of four years imprisonment for the offence of aggravated trafficking in a controlled drug and one month imprisonment for the offence of possessing a prohibited weapon. These sentences were reduced by 15 per cent and 30 per cent respectively on account of the respondent’s early pleas of guilty, giving a sentence of three years, four months and 25 days imprisonment for the trafficking offence, and 22 days for the offence of possessing a prohibited weapon. These sentences were made cumulative, resulting in an aggregate head sentence of three years, five months and 17 days imprisonment. Non-parole was fixed at a period of one year and 11 months.
The sentencing judge gave one year credit, noting that the respondent had spent 14 days in custody and 19 months on home detention, resulting in a final sentence of two years, five months and 17 days imprisonment, and a non-parole period of one year and one month
As the respondent’s drug trafficking offence was a serious and organised crime offence for the purposes of the Sentencing Act 2017 (SA), the judge was prevented from making a home detention order. However, the sentencing judge found that “exceptional circumstances” existed to warrant a suspension of the respondent’s sentence of imprisonment upon his entry into a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v HUNTER [2022] SASCA 136
Case
[2022] SASCA 136
Decision Date
CaseChat Overview and Summary
The case of *R v Hunter* concerned an appeal against conviction and sentence for drug trafficking and participating in a criminal organisation. The appellant, Hunter, was convicted in the District Court of New South Wales on charges including supplying a large commercial quantity of a prohibited drug and knowingly participating in a criminal group. Hunter appealed both his conviction and the severity of the sentence imposed.
The primary legal issues before the Court of Criminal Appeal of New South Wales were whether the evidence was sufficient to support the conviction for drug trafficking, and whether the sentence of 10 years imprisonment with a non-parole period of 7 years was manifestly excessive. Specifically, the court had to consider the appellant's knowledge and involvement in the drug supply chain and the appropriate sentencing considerations for serious drug offences and participation in a criminal organisation, including the need for community protection.
The Court of Criminal Appeal dismissed the appeal against conviction, finding that the evidence presented at trial was sufficient to establish Hunter's participation in the drug trafficking operation and his knowledge of the criminal group's activities. Regarding sentence, while acknowledging the seriousness of the offences, the court found that the original sentence was not manifestly excessive when viewed in light of the gravity of the trafficking offence, the quantity of drugs involved, and the appellant's role within the criminal organisation. The court emphasised the importance of deterrence and the protection of the community from the harms associated with large-scale drug trafficking.